AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES

Transcription

1 This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Laws and Regulations. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services.

2 This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the other. For guidance on the completion and use of this Agreement, see EJCDC User s Guide to the Owner-Engineer Agreement, EJCDC E-001, 2009 Edition. Copyright 2008 National Society of Professional Engineers 1420 King Street, Alexandria, VA (703) American Council of Engineering Companies th Street N.W., Washington, DC (202) American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA (800) Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA (703) The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services.

3 TABLE OF CONTENTS Page ARTICLE 1 SERVICES OF ENGINEER Scope... 1 ARTICLE 2 OWNER S RESPONSIBILITIES General... 2 ARTICLE 3 SCHEDULE FOR RENDERING SERVICES Commencement Time for Completion... 2 ARTICLE 4 INVOICES AND PAYMENTS Invoices Payments... 3 ARTICLE 5 OPINIONS OF COST Opinions of Probable Construction Cost Designing to Construction Cost Limit Opinions of Total Project Costs... 4 ARTICLE 6 GENERAL CONSIDERATIONS Standards of Performance Design Without Construction Phase Services Use of Documents Insurance Suspension and Termination Controlling Law Successors, Assigns, and Beneficiaries Dispute Resolution Environmental Condition of Site Indemnification and Mutual Waiver Miscellaneous Provisions ARTICLE 7 DEFINITIONS Defined Terms ARTICLE 8 EXHIBITS AND SPECIAL PROVISIONS Exhibits Included Total Agreement Designated Representatives Engineer's Certifications... 16

4 AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of, 2011 ( Effective Date ) between City of Missoula Morrison-Maierle, Inc. ( Owner ) and ( Engineer ). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Design and Construction of the Airport Interceptor Sewer City Project No ("Project"). Engineer's services under this Agreement are generally identified as follows: Field survey and base map preparation, geotechnical investigation (by Subconsultant), preliminary engineering, flow monitoring, right-of-way permitting, assistance with easement acquisition, final design, Engineer s opinions of probable cost, and preparation of construction drawings and specifications and bid documents. Owner and Engineer agree that Engineer will provide Construction Phase services for the Project which are not included in this Agreement. These services are anticipated to include pre-construction, construction management, construction observation, and post-construction services. A detailed scope of work and budget for these services will be developed later, and incorporated into this Agreement by execution of an Amendment. Owner and Engineer further agree as follows: ARTICLE 1 SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the services set forth herein and in Exhibit A. Page 1 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

5 ARTICLE 2 OWNER S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein and in Exhibit B. B. Owner shall pay Engineer as set forth in Exhibit C. C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering Phase I services as of the Effective Date. Engineer shall not begin rendering Phase II services until receipt of written authorization from Owner Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer s services is impaired, or Engineer s services are delayed or suspended, then the time for completion of Engineer s services, and the rates and amounts of Engineer s compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer s services, and the rates and amounts of Engineer s compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer s performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C and in a form agreeable to Page 2 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

6 Owner. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt Payments A. Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. B. Failure to Pay: If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer s invoice, then: 1. amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D. Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer s services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which no markup shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Engineer s opinions of probable Construction Cost are to be made on the basis of Engineer s experience and qualifications and represent Engineer s best judgment as an experienced and qualified professional generally familiar with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, Owner must employ an independent cost estimator as provided in Exhibit B Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer, such Construction Cost limit and a statement of Engineer s rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, Construction Cost Limit, to this Agreement. No Construction Cost limit is established for this Project. Page 3 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

7 5.03 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. ARTICLE 6 GENERAL CONSIDERATIONS 6.01 Standards of Performance A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer s services. B. Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer s services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner-furnished information. C. Subconsultants: Engineer may employ such Subconsultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Subconsultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. E. Compliance with Laws and Regulations, and Policies and Procedures: 1. Engineer and Owner shall comply with applicable Laws and regulations. 2. Prior to the Effective Date, Owner provided to Engineer in writing any and all policies and procedures of Owner applicable to Engineer's performance of services under this Agreement. Engineer shall comply with such policies and procedures, subject to the standard of care set forth in Paragraph 6.01.A, and to the extent compliance is not inconsistent with professional practice requirements. 3. This Agreement is based on Laws and Regulations and Owner-provided written policies and procedures as of the Effective Date. Changes after the Effective Date to these Laws and Regulations, or to Owner-provided written policies and procedures, may be the basis for modifications to Owner s responsibilities or to Engineer s scope of services, times of performance, or compensation. F. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

8 dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such documents. G. The general conditions for any construction contract documents prepared hereunder are to be the Standard General Conditions of the Construction Contract as prepared by the Engineers Joint Contract Documents Committee (EJCDC C-700, 2007 Edition) unless both parties mutually agree to use other general conditions by specific reference in Exhibit J. H. Engineer shall not at any time supervise, direct, control, or have authority over any contractor work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a contractor to comply with Laws and Regulations applicable to such contractor s furnishing and performing of its work. I. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor s failure to furnish and perform the Work in accordance with the Contract Documents. J. Engineer shall not provide or have any responsibility for surety bonding or insurancerelated advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements. K. Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor, or Supplier, or of any of their agents or employees or of any other persons (except Engineer s own agents, employees, and Subconsultants) at the Site or otherwise furnishing or performing any Work; or for any decision made regarding the Contract Documents, or any application, interpretation, or clarification, of the Contract Documents, other than those made by Engineer. L. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's and Owner's safety programs of which Engineer has been informed in writing Design Without Construction Phase Services A. Engineer shall be responsible only for those Construction Phase services expressly required of Engineer in Exhibit A, Engineer s Services. With the exception of such expressly required services, Engineer shall have no design, Shop Drawing review, or other obligations during construction and Owner assumes all responsibility for the application and interpretation of the Contract Documents, review and response to Contractor claims, contract administration, processing Change Orders, revisions to the Contract Documents during construction, construction surety bonding and insurance requirements, construction observation and review, review of payment applications, and all other necessary Construction Phase engineering and professional services. Owner waives all claims against the Engineer that may be connected in any way to Construction Phase engineering or professional services except for those services that are expressly required of Engineer in Exhibit A, Engineer s Services. Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

9 6.03 Use of Documents A. All Documents are instruments of service in respect to this Project, and Engineer shall retain an ownership and property interest therein (including the copyright and the right of reuse at the discretion of the Engineer) whether or not the Project is completed. Owner shall not rely in any way on any Document unless it is in printed form, signed or sealed by the Engineer or one of its Subconsultants. B. Either party to this Agreement may rely that data or information set forth on paper (also known as hard copies) that the party receives from the other party by mail, hand delivery, or facsimile, are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. If the parties agree to other electronic transmittal procedures, such are set forth in Exhibit J. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data s creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60-day acceptance period will be corrected by the party delivering the electronic files. D. When transferring documents in electronic media format, the transferring party makes no representations as to long-term compatibility, usability, or readability of such documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the documents creator. E. Owner may make and retain copies of Documents for information and reference in connection with use on the Project by Owner. Engineer grants Owner a limited license to use the Documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment for all services relating to preparation of the Documents and subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner s sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and Subconsultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Subconsultants from all claims, damages, losses, and expenses, including attorneys fees, arising out of or resulting from any use, reuse, or modification of the Documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

10 F. If Engineer at Owner s request verifies the suitability of the Documents, completes them, or adapts them for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, Insurance. Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, Insurance. C. Owner shall require Contractor to purchase and maintain policies of insurance covering workers' compensation, general liability, property damage (other than to the Work itself), motor vehicle damage and injuries, and other insurance necessary to protect Owner's and Engineer's interests in the Project. Owner shall require Contractor to cause Engineer and its Subconsultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project. D. Owner and Engineer shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer s services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance relating to the Project shall contain provisions to the effect that Engineer s and its Subconsultants interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against Engineer or its Subconsultants, or any insureds, additional insureds, or loss payees thereunder. F. All policies of insurance shall contain a provision or endorsement that the coverage afforded will not be canceled or reduced in limits by endorsement, and that renewal will not be refused, until at least 30 days prior written notice has been given to Owner and Engineer and to each other additional insured (if any) to which a certificate of insurance has been issued. G. At any time, Owner may request that Engineer or its Subconsultants, at Owner s sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Subconsultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements Suspension and Termination A. Suspension: 1. By Owner: Owner may suspend the Project for an indefinite period of time upon seven days written notice to Engineer. 2. By Engineer: Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement if Engineer's performance has been substantially delayed through no fault of Engineer. Page 7 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

11 B. Termination: The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. By Engineer: 2. For convenience, 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer s responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer s services for the Project are delayed or suspended for more than 90 days for reasons beyond Engineer s control. 3) Engineer shall have no liability to Owner on account of such termination. c. Notwithstanding the foregoing, this Agreement will not terminate under Paragraph 6.05.B.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. a. By Owner effective upon Engineer s receipt of notice from Owner. C. Effective Date of Termination: The terminating party under Paragraph 6.05.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. Payments Upon Termination: 1. In the event of any termination under Paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all Reimbursable Expenses incurred through the effective date of termination. Upon making such payment, Owner shall have the Page 8 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

12 limited right to the use of Documents, at Owner s sole risk, subject to the provisions of Paragraph 6.03.E. 2. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in Paragraph 6.05.D.1, to invoice Owner and to payment of a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer s Subconsultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C Controlling Law A. This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.07.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. Owner agrees that the substance of the provisions of this Paragraph 6.07.C shall appear in the Contract Documents Dispute Resolution A. Owner and Engineer agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to invoking the procedures of Exhibit H or other provisions of this Agreement, or exercising their rights under law. Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

13 B. If the parties fail to resolve a dispute through negotiation under Paragraph 6.08.A, then either or both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights under law Environmental Condition of Site A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. D. It is acknowledged by both parties that Engineer s scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer s services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an "owner" arranger, operator, generator, or transporter of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer s activities under this Agreement Indemnification and Mutual Waiver A. Indemnification by Engineer: To the fullest extent permitted by law, Engineer shall indemnify and hold harmless Owner, and Owner s officers, directors, members, partners, agents, consultants, and employees from reasonable claims, costs, losses, and damages arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer s officers, directors, Page 10 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

14 members, partners, agents, employees, or Subconsultants. This indemnification provision is subject to and limited by the provisions, if any, agreed to by Owner and Engineer in Exhibit I, Limitations of Liability." B. Indemnification by Owner: Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Subconsultants as required by Laws and Regulations and to the extent (if any) required in Exhibit I, Limitations of Liability. C. Environmental Indemnification: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Subconsultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) nothing in this paragraph shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party s total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the party and in part by the negligence of the other party or any other negligent entity or individual, shall not exceed the percentage share that the party s negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. Mutual Waiver: To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other s employees, officers, directors, members, agents, insurers, partners, consultants, and Subconsultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, which agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. Page 11 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

15 D. Waiver: A party s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of Claims: To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. ARTICLE 7 DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following provisions: 1. Additional Services The services to be performed for or furnished to Owner by Engineer in accordance with Part 2 of Exhibit A of this Agreement. 2. Agreement This written contract for professional services between Owner and Engineer, including all exhibits identified in Paragraph 8.01 and any duly executed amendments. 3. Asbestos Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 4. Basic Services The services to be performed for or furnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. 5. Construction Contract The entire and integrated written agreement between Owner and Contractor concerning the Work. 6. Construction Cost The cost to Owner of those portions of the entire Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals, consultants, and Subconsultants; cost of land or rights-of-way, or compensation for damages to properties; Owner s costs for legal, accounting, insurance counseling or auditing services; interest or financing charges incurred in connection with the Project; or the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 7. Constituent of Concern Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C et seq. ( CERCLA ); (b) the Hazardous Materials Transportation Act, 49 U.S.C et seq.; (c) the Page 12 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

16 Resource Conservation and Recovery Act, 42 U.S.C et seq. ( RCRA ); (d) the Toxic Substances Control Act, 15 U.S.C et seq.; (e) the Clean Water Act, 33 U.S.C et seq.; (f) the Clean Air Act, 42 U.S.C et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 8. Contract Documents Those items so designated in the Construction Contract, including the Drawings, Specifications, construction agreement, and general and supplementary conditions. Only printed or hard copies of the items listed in the Construction Contract are Contract Documents. Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 9. Contractor The entity or individual with which Owner has entered into a Construction Contract. 10. Documents Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. 11. Drawings That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 12. Effective Date The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, the date on which this Agreement is signed and delivered by the last of the parties to sign and deliver. 13. Engineer The individual or entity named as such in this Agreement. 14. Hazardous Waste The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 15. Laws and Regulations; Laws or Regulations Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 16. Owner The individual or entity with which Engineer has entered into this Agreement and for which the Engineer's services are to be performed. Unless indicated otherwise, this is the same individual or entity that will enter into any Construction Contracts concerning the Project. 17. PCBs Polychlorinated biphenyls. Page 13 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

17 18. Petroleum Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-hazardous waste and crude oils. 19. Project The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 20. Radioactive Material Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 21. Record Drawings Drawings depicting the completed Project, prepared by Engineer as an Additional Service and based solely on Contractor's record copy of all Drawings, Specifications, addenda, change orders, work change directives, field orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction. 22. Reimbursable Expenses The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic and Additional Services for the Project. 23. Resident Project Representative The authorized representative of Engineer assigned to assist Engineer at the Site during the Construction Phase. As used herein, the term Resident Project Representative or "RPR" includes any assistants or field staff of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 24. Samples Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 25. Shop Drawings All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 26. Site Lands or areas to be indicated in the Contract Documents upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands which are designated for the use of Contractor. 27. Specifications That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. Page 14 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

18 28. Subconsultants Individuals or entities having a contract with Engineer to furnish services with respect to this Project as Engineer s independent professional associates and consultants; subcontractors; or vendors. 29. Subcontractor An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 30. Substantial Completion The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer with concurrence of Owner, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms substantially complete and substantially completed as applied to all or part of the Work refer to Substantial Completion thereof. 31. Supplier A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 32. Total Project Costs The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project-related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights-ofway, compensation for damages to properties, Owner s costs for legal, accounting, insurance counseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. 33. Work The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. ARTICLE 8 EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included: A. Exhibit A, Engineer s Services. B. Exhibit B, Owner s Responsibilities. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative. NOT INCLUDED Page 15 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

19 E. Exhibit E, Notice of Acceptability of Work. NOT INCLUDED F. Exhibit F, Construction Cost Limit. NOT INCLUDED G. Exhibit G, Insurance. H. Exhibit H, Dispute Resolution. I. Exhibit I, Limitations of Liability. J. Exhibit J, Special Provisions. K. Exhibit K, Amendment to Owner-Engineer Agreement. NOT INCLUDED 8.02 Total Agreement: A. This Agreement, (together with the exhibits identified above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written amendment Designated Representatives: A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer s and Owner s representatives with respect to the services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of the respective party whom the individual represents Engineer's Certifications: A. Engineer certifies that it has not engaged in corrupt, fraudulent, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph 8.04: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; 3. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Page 16 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services

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21 Engineer s Services This is EXHIBIT A, consisting of pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated,. Article 1 of the Agreement is supplemented to include the following agreement of the parties. Engineer shall provide Basic and Additional Services as set forth below. PART 1 BASIC SERVICES BACKGROUND The City of Missoula (City) plans to design and construct the Airport Interceptor Sewer Project which will provide relief to the existing Airport Industrial Park interceptor sewer and improve the capacity of sewer service to the Wye area. The City identified the Airport Interceptor Sewer as a recommended project in the 2000 City Wastewater Facilities Plan. At the request of Public Works Staff, the City Council approved a budget that provides for preliminary design and preparation of construction documents to commence in 2011 with construction activities to commence at a time to be determined later. This is City Project No PROJECT DESCRIPTION The Airport Interceptor Sewer Project includes approximately 12,000 feet of new gravity sewer located along Highway 10 West. The west end will connect to the existing 12-inch Futurity lift station force main at Butler Creek Road and the east end to an existing 24-inch gravity sewer near Dougherty Drive. Three additional gravity sewers are included which will connect to the Airport Interceptor Sewer from the Momont No. 1, Momont No. 2, and Grant Creek lift stations, respectively. Depending on the final alignment, these three sewers could range up to 1,800 feet each in length. Two or three highway crossings and one to three railroad crossings will be required. An existing 15-inch branch sewer located on the south side of Highway 10 is intended to receive the new gravity sewer from the Grant Creek lift station. Basic Services included in this Agreement consist of Phase I Preliminary Design, and Phase II Final Design and Plans/Specifications as described below. This scope of work assumes that a single prime construction contract will be completed and executed. PHASE I PRELIMINARY DESIGN TASK 100 PROJECT MANAGEMENT 101 Project Kickoff Meeting. Engineer s team will meet with City staff in a kickoff meeting for the purpose of discussing overall project direction and consensus building on major issues and approach. Preparation for this meeting is included in this subtask. This meeting will be held at the Wastewater Treatment Plant, Public Works Office, or Morrison-Maierle s office depending on City preference. Meeting notes will be prepared and distributed to all participants. Page 1 (Exhibit A (Engineer s Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services.